FAN 144 (First Amendment News) Cert Petition: Nursing student challenges expulsion for Facebook comments
Seattle. The case is Keefe v. Adams. It involves Craig Keefe. According to a story by David Hanners in the Twin Cities Pioneer Press, Mr. Keefe was a “semester away from finishing his studies to be a registered nurse. Like a lot of college students — like a lot of Americans — he was on the social networking site Facebook. But in December, officials at Brainerd’s Central Lakes College took exception to some of Keefe’s posts on his private Facebook page and kicked him out of school.Keefe says he wasn’t told what the problems were with his posts, nor was he told why or how anything he did violated school policy. Angered, he has taken his complaint to court.”
In a cert. petition recently filed with the Supreme Court, the issues raised were:
- May a public community college use professional conduct codes to expel a nursing student from a professional degree program, without regard to First Amendment limits, for comments unrelated to the school’s curriculum posted to the student’s personal Facebook page?
- May a public community college expel a student for disciplinary infractions using less rigorous due process procedures applicable to decisions involving curricular speech?
The brief, filed by Robert-Corn-Revere (with Ronald London & Lisa Zycherman), begins: “This case raises the question of whether the First Amendment permits a public college to expel a student from a professional degree program under nebulous standards, such as ‘maintaining professional boundaries,’ for posting non-curricular com- ments on his Facebook page. A divided panel of the Eighth Circuit said that it could, even though the student’s speech was not part of any coursework or clinical requirement.In reaching this conclusion, the panel expanded the limits of the ‘professional speech doctrine,’ which permits regulation only where the speech is directly related to specific professional duties.”
“It also exacerbated existing circuit splits that seek to define when off-campus speech may be subject to regulation, when speech may be considered to be ‘school-sponsored,’ and when adult college students may be subjected to the lesser First Amendment protections often provided elementary and secondary school children”
“In the process, the panel approved more lax due process procedures under the guise of a curricular expulsion, when the college instead was imposing a disciplinary sanction. The decision ignored this Court’s precedents, which require more formal due process procedures in the case of disciplinary sanctions, and created further disarray among the circuits on this issue. Review by this Court is necessary to clarify the First Amendment and due process principles involved.”
→ The Petitioner urges the Court to review the case for the following reasons:
I. This Court’s Review is Essential to Clarify First Amendment Limits of Applying Professional Standards to Restrict Non-Curricular Speech by Public College Students
A. The First Amendment Protects College Students and Others Subject to Professional Codes of Conduct
B. The Eighth Circuit Blurred the Line Between Curricular and Non-Curricular Speech,Widening a Rift Among the Circuits
C. Review by This Court is Imperative
II. This Court’s Review is Essential to Clarify Due Process for Disciplinary Sanctions on Non-Curricular Speech ata Public College.
SCOTUSblog: Justices skeptical about social media restrictions for sex offenders
This from Amy Howe over at SCOTUSblog: “At today’s oral argument in Packingham v. North Carolina, a challenge to a state law that imposes criminal penalties on registered sex offenders who visit social networking sites, Justice Elena Kagan suggested that social media sites like Facebook and Twitter were ‘incredibly important parts’ of the country’s political and religious culture. People do not merely rely those sites to obtain virtually all of their information, she emphasized, but even ‘structure their civil community life’ around them. Justice Ruth Bader Ginsburg echoed those sentiments, telling the North Carolina official defending the law that barring sex offenders from social networking sites would cut them off from ‘a very large part of the marketplace in ideas.’ Kagan was perhaps the most vocal opponent of the law, but by the end of an hour of oral argument it seemed very possible that Ginsburg and at least three of Kagan’s other colleagues would join her in striking down the North Carolina law.”
“. . . . And perhaps most critically for the state, Justice Anthony Kennedy was unconvinced by the state’s efforts to rely on a 1992 case in which the justices upheld a Tennessee law that imposed a ban on soliciting votes or distributing campaign materials within 100 feet of a polling place. The court in that case ruled that the ban served the state’s interest in protecting its citizens’ right to vote freely, but Kennedy today dismissed the Tennessee ban as “not analogous” to North Carolina’s. If that is the best you have, he seemed to be saying to Montgomery, ‘I think you lose.’ If Kennedy is indeed on board, then Packingham seems to have five votes in favor of striking down the North Carolina law.”
→ Transcript of oral arguments here.
→ See also, Ruthann Robson, Court Hears Oral Argument on Sex Offenders’ First Amendment Right to Access Social Media, Constitutional Law Prof Blog, Feb. 27, 2017
9 Top First Amendment Experts React to White House Press Briefing Ban on CNN, NYT, others
This from Just Security: Recently, “the White House barred specific news organizations from attending a press briefing by spokesman Sean Spicer. Among the organizations excluded from the question and answer session were news outlets that President Donald Trump has singled out for criticism—including Buzzfeed, CNN, the New York Times, and Politico. The White House Correspondents’ Association stated that its board is “protesting strongly” against the action.Many in the media have asked whether the White House actions were unconstitutional. I asked some of the most highly respected First Amendment law experts across the country.” Here is the lineup (go to link for comments):
- Robert Corn-Revere (Davis Wright Tremaine)
- Lucy Dalglish (U. MD. Journalism Dept.)
- Arthur Eisenberg (NYCLU)
- Jameel Jaffer (Knight First Amendment Institute, Columbia)
- Dawn Johnsen (Indiana U. Law School)
- Lee Levine (Levine Sullivan Koch & Schulz)
- Burt Neuborne (NYU Law School)
- David Schulz (Media Freedom & Information Access Clinic, Yale Law School)
- Laurence H. Tribe (Harvard Law School)
→ See video clip: Sean Spicer on Politico’s Playbook, Dec. 2016
NYU Center for the Humanities hosts event on Trump & First Amendment
February 22, 2017: The panelists discussed the history of freedom of speech and what the new administration means for First Amendment rights.
“The election of Donald Trump has come with a broad attack on the press and on the freedom of political expression. What are likely to be the challenges to the First Amendment going forward, and how does America’s history of robust dissent support the protection of speech and press today?”
The panelists were:
- Floyd Abrams, Renowned First Amendment Attorney, Cahill Gordon & Reindel LLP; Author, The Soul of the First Amendment (forthcoming in April)
- Nadine Strossen, John Marshall Harlan II Professor of Law, New York Law School; President of the American Civil Liberties Union, 1991-2008; Author, Defending Pornography: Free Speech, Sex, and the Fight for Women’s Rights
- Stephen Solomon, Associate Professor of Journalism, Arthur L. Carter Journalism Institute, New York University; Author, Revolutionary Dissent: How the Founding Generation Created the Freedom of Speech
- Thomas Healy, Professor of Law, Seton Hall Law School; Author, The Great Dissent: How Oliver Wendell Holmes Changed His Mind—and Changed the History of Free Speech in America
More on Trump & the First Amendment
You know, they always bring up the First Amendment. I love the First Amendment; nobody loves the First Amendment better than me. — Donald Trump
- Noah Feldman, Trump’s Love-Hate Relationship With the First Amendment, Bloomberg View, Feb. 27, 2017
- Debra Cassens Weiss, Did White House exclusion of press violate First Amendment? Norman Siegel says suit should be filed, ABAJ, Feb. 27, 2017
- Jonathan Kraut, Trump violates First Amendment, The Signal, Feb. 27, 2017
- Sue Lempert, Fake news and the First Amendment, The Daily Journal, Feb. 27, 2017
- Nate Madden, Trump’s Fighting the Media, not the First Amendment, Conservative Review, Feb. 27, 2017
- Trump Thinks First Amendment is a Joke, The Young Turks, Feb. 24, 2017 (YouTube)
The Reporters Committee for Freedom of the Press filed an amicus brief opposing compelled testimony of John Sepulvado, a former reporter with Oregon Public Broadcasting (OPB), which was authorized by Attorney General Jeff Sessions in his first week in office. Sepulvado had interviewed Ryan Bundy, one of the Malheur Natural Wildlife Refuge occupants, about the purpose of the occupation in January 2016.
Though there had been earlier contacts from prosecutors, a subpoena was finally served on Sepulvado last week. The subpoena does not limit the scope of the requested testimony. The government seeks to have Sepulvado authenticate his interview of Bundy, which would also open Sepulvado up to vigorous cross-examination by the defendants, all of whom oppose the subpoena.
Sepulvado’s attorney filed a motion to quash the subpoena this week. In its brief in support of that effort, the Reporters Committee noted the jurisdiction’s long history of maintaining the confidentiality of journalists’ work product and the importance of an independent press to an informed public. The brief highlights the chilling effect that compelled testimony of confidential newsgathering information would have on future sources, and how that would affect deeply-researched stories.
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